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Judgment
M.Y. Eqbal, J.—The petitioner has challenged the order dated 6.9.1997 passed by the Circle Officer, Town Anchal, Ranchi in Land Encroachment Case No. 2/88 and also the order dated 16.7.2001 passed by the Deputy Commissioner, Ranchi in Land Encroachment Appeal No. 333(R) 15 of 1998-99 whereby the petitioner has been directed to remove the encroachment over 0.72 acres of land bearing R.S. Plot No. 1981 of Khata No. 252 situated at village Booti PS Sadar, district Ranchi. The said orders have been passed in a proceeding initiated under the Bihar Public Land Encroachment Act, 1956.
Mr. Debi Prasad, learned senior counsel appearing on behalf of the petitioner assailed the impugned orders mainly on the ground that there is serious disputed question of title with respect to the land in question and such dispute with regard to title and possession cannot be decided in a summary proceeding under the said Act. Learned counsel put reliance on the decisions reported in Brij Bhukan Kalwar and Others Vs. S.D.O. Siwan and Others, ; Apna Grih Nirman Sahyog Samiti and Another Vs. Lalit Narain Mithila University and Others, ; Ashwani Kumar Gupta v. State of Bihar 2000 (2) PLJR 221; Jharu Napit v. State of Bihar 2003 (3) JCR 424 and Kamal Kumar Singhania and Another Vs. State of Jharkhand and Others, .
Petitioner''s case is that originally the land in question was leased out by the Executive Engineer PWD Road Division, Ranchi to one Sri S.M. Dhar for a period of 12 years by a registered deed of lease dated 29.9.1943. The said lessee Sri S.M. Dhar, before expiry of lease, transferred his leasehold right with respect to the land in favour of Banshi Dhar Daga by virtue of a registered deed dated 30.4.1946 and put him in possession of the same. Bansidhar Daga exercised all acts of possession over the said land so long he was alive and after his death his son Sri Pradeep Kumar Daga and his widow, Chandrakala Devi inherited the said property left by the deceased and came in possession of the same. Petitioner''s further case is that Pradeep Kumar Daga and Chandrakala Devi sold the aforementioned land along with other lands to the petitioner by virtue of a registered deed of sale dated 2.5.1972 for a valuable consideration and put them in possession of the said land. The petitioner claims to have been in continuous possession of the land after spending huge sum without any objection, obstruction, hindrance, claim or demand from any corner far less by the respondents. The petitioner, therefore, claims absolute ownership with respect to the aforesaid land and claims to have acquired absolute and indefeasible title thereto.
The collector exercising appellate power, while dismissing the appeal, came to the following conclusion :
"It is an admitted fact that land belonging to Khata No. 252, Plot No. 1981 of Mouja Booti, PS Ranchi Sadar has been recorded as Kaisrchind in the revisional survey. The State Government is the custodian of such land which belongs to Government of India. No authority other than the Government of India or State Government is competent to grant lease in respect of such land. In the present case the appellant claims that the Executive Engineer, PWD, Road Division, Ranchi originally granted lease for a period of 12 years on 29th September, 1942 to Sri S.M. Dhar. Executive Engineer is not the competent authority to grant lease in such cases. Moreover the lessee cannot transfer or sub-lease such land without the express permission of the lessor. But in this case appellant claims transfer of this land from Shri S.M. Dhar to Shri Banshidhar Daga and from his heirs to the appellant. All these transactions are bad in the eye of law and do not create any right, title and interest over the land in question in favour of the appellant."
It is true that the land in question was originally leased out to S.M. Dhar in the year 1943 and the lessee, in his turn, transferred the lease-hold interest to Ban-shidhar Daga in the year 1946. In the year 1972 Banshidhar Daga transferred the land in favour of the petitioner. Now the question that falls for consideration is whether, in such circumstance, the petitioner acquired any title ovei the land by adverse possession by remaining in continuous possession and whether title by adverse possession can be created merely by remaining in possession of the lease-hold interest over the land. This question in my opinion cannot be adjudicated in a summary proceeding under the said Act.
In the case of Government of Andhra Pradesh v. Thummala Krishnan Rao and Anr. reported in AIR 1982 SC 1981 their Lordships observed as under :
"It stems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is the property of Government''. In regard to property described in Sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorized occupation of property which is declared by Section 2 to be property of the Government and therefore it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6(1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment u/s 3". Section 3, in turn, refers to unauthorised occupation of any land "which is the property of Government". If there is a bonnfide dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property oelongs to it and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bonafide claim or title. In the instant cae, there is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Os-mania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bonafide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents."
Admittedly the land in question is a chunk of land measuring an area of 0.72 acres and not the public road or pathways and the said land came in possession of the predecessor in-interest of the petitioner by virtue of a deed of lease executed by PWD department. In my opinion, therefore, the only remedy available to the respondents is to recover possession of the land by approaching the Civil Court of competent jurisdiction. The impugned orders, therefore, cannot be sustained in law.
For the aforesaid reasons this writ application is allowed and the impugned orders passed by the respondents are set aside.